Opinion
Record No. 0007-92-4
June 29, 1993
FROM THE CIRCUIT COURT OF FREDERICK COUNTY ROBERT K. WOLTZ, JUDGE.
William A. Crane, Public Defender (Office of the Public Defender, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On July 23, 1987, James Gilbert Fincham was convicted of distribution of cocaine. On September 1, 1987, he was convicted of three counts of distribution of cocaine and one count of possession of cocaine with intent to distribute. On appeal, he contends that the trial court erred (1) in denying his motion for a change of venue, (2) in holding that his right to a fair and impartial jury trial was not violated by publication of a newspaper account based on information given to a newspaper reporter by the Commonwealth's Attorney, (3) in refusing to require the Commonwealth to disclose the name of a confidential informant, (4) in admitting evidence of other drug crimes and denying a motion for a mistrial, (5) in admitting evidence of his dangerousness and in denying a motion for a mistrial, (6) in admitting expert testimony on an ultimate fact in issue, (7) in improperly instructing the jury on accommodation, and (8) in the cumulative effect of the preceding alleged errors. We find no error and affirm the judgment of the trial court.
On February 21, 1987, Agent Norris visited Fincham at his business in Middletown. An informant, who had previously introduced Norris to Fincham, was also present. Norris asked Fincham to do some business. Fincham replied that he was having trouble getting together with his source. Fincham left to try to find some cocaine. Norris sent the informant to get Officer Polhemus, who was waiting down the road. Norris and Polhemus met at the bar that adjoined Fincham's repair shop. There, they waited for Fincham.
Fincham returned without any cocaine. Nevertheless, Officer Norris requested that Fincham obtain a sample so that he could test the cocaine's quality. After negotiating a price, Fincham left. An hour later, he returned and Norris followed him to his repair shop office. There, Fincham sold Officer Norris one-half ounce of cocaine for $1,200. The two men were alone when this exchange took place. Fincham suggested that Norris return the next day to purchase more cocaine. On February 24, 1987, Norris called Fincham, seeking to buy more cocaine, but Fincham had none. On February 25, 1987, Fincham told Norris he would have an ounce soon and it would cost $2,400.
On March 10, 1987, Officers Norris and Polhemus again went to Fincham's place of business. When asked for cocaine, Fincham said he would have some that weekend. When the officers returned on March 14, 1987, Fincham made a phone call to "Larry." After hanging up the telephone, he told Officer Norris that an ounce of cocaine would cost $2,400. Fincham told the officers to wait at the bar while he arranged the transaction. About an hour later, Fincham returned and told Norris to follow him in another car. At a location on a dirt road, Norris paid Fincham $2,400. Fincham then described a junk pile next to which Norris would find the cocaine in the bottom of a white bucket. Norris procured the cocaine from that location. He then rejoined Officer Polhemus who was waiting at the bar.
Norris met Fincham again on March 24, 1987. They drove in Fincham's car to the same dirt road. There, Fincham sold Norris an ounce of cocaine for $2,300. Fincham had this cocaine in his car.
On April 9, 1987, Fincham sold Officer Norris two ounces of cocaine for $4,800. On Fincham's instructions, Norris procured the cocaine from an exhaust pipe on the ground near the dirt road. Back at the bar, Fincham asked Norris if he wanted to purchase three ounces the following week. Norris agreed. Shortly thereafter, the officers arrested Fincham. A search of Fincham's person revealed small packets of cocaine, stuffed in his sock. A search of Fincham's home produced cocaine, found in the pocket of one of his shirts in his bedroom closet.
The July 23, 1987 conviction was based on the February 21 sale. The September 1, 1987 convictions were based on the March 14, March 24, and April 9 sales and on the cocaine found in the searches of Fincham's person and his home.
I. MOTIONS FOR CHANGE OF VENUE
[V]enue decisions are entrusted to the sound discretion of the trial court and will not be reversed absent a showing of abuse of that discretion. Further, a criminal defendant who challenges venue confronts a presumption that he can receive a fair trial from a jury of the vicinage. To overcome this presumption, a defendant has the burden of "establishing clearly such a pervasive prejudice among the citizens of the venue of the crime as to make it reasonably certain that he will not receive a fair trial."
Buchanan v. Commonwealth, 238 Va. 389, 406, 384 S.E.2d 757, 767 (1989), cert. denied, 493 U.S. 1063 (1990) (quotingMackall v. Commonwealth, 236 Va. 240, 250, 372 S.E.2d 759, 766 (1988), cert. denied, 492 U.S. 925 (1989) (citations omitted)). If the trial court determines that the defendant has failed to overcome this burden, "its refusal to grant a motion to change venue or to take other remedial action will not constitute reversible error unless the record affirmatively shows that the accused has made such a showing." Wilmoth v. Commonwealth, 10 Va. App. 169, 172, 390 S.E.2d 514, 516 (1990).
Voir dire at the first trial disclosed that just under half the panel members had at least read newspaper headlines concerning the Fincham case. However, most replied that they remembered little of what they had read. When asked whether they had been influenced by what they had read, they responded that they would form their own opinions and that a person cannot believe what he reads in the newspaper. The panel denied having any pre-formed opinions or bias. Thus, Fincham failed to carry his burden of "establishing clearly such a pervasive prejudice among the citizens of the venue of the crime as to make it reasonably certain that he will not receive a fair trial," and the trial court did not err in denying his motion to quash the venire. See Webb v. Commonwealth, 11 Va. App. 220, 222-23, 397 S.E.2d 539, 540 (1990).
On voir dire in the second trial, defense counsel asked whether any of the panel members had seen or heard any publicity regarding the case. Half the panel acknowledged that they recognized the case from newspaper headlines. Of these, six had read at least one story concerning the case. Four stated only that the defendant's name was familiar. As in the first trial, the panel stated that the articles did not affect them or cause them to have pre-formed opinions and that they could perform their duties as jurors fairly.
One juror, Mr. Crump, stated that he had read an article regarding Fincham's conviction for narcotics in the first trial. The trial court refused to strike Mr. Crump for cause. Five of the panel members had discussed newspaper accounts of Fincham's possible involvement in two local murders. Fincham argues that by leaving on the venire Mr. Crump and four of the five panel members who had discussed his possible involvement in murder, the trial court denied him a fair and impartial jury panel. However, he has not preserved this issue for appeal.See Rule 5A:12(c). He has raised on appeal only the issue of whether he should have been granted a change of venue. The fact that six veniremen should have been struck for cause does not demonstrate that an impartial jury could not be obtained in the county.
II. PROSECUTORIAL MISCONDUCT
A local newspaper reported Fincham's May 5, 1987 bond hearing. The reporter who wrote the story did not attend the hearing, but asked the Commonwealth's Attorney what had taken place. The Commonwealth's Attorney told the reporter that there had been evidence of a possible link between Fincham and two unsolved local homicides. He also said that Officer Norris had testified that Fincham was dangerous to the community. This information appeared in the newspaper article.
Fincham contends that by revealing to the newspaper information that could not have come out in his trial, the Commonwealth's Attorney prejudiced his right to an impartial jury. He cites the Code of Professional Responsibility, DR7-106(a), which prohibits dissemination of extra-judicial statements to the press for the purpose of interfering with a jury trial's fairness. That issue has no place in this appeal. This case is not the forum in which the professional propriety of the Commonwealth's Attorney's conduct should be tried. There has been no showing that the information given, or its report in the newspaper, prevented the trial court from impanelling impartial juries.
III. INFORMANT'S IDENTITY
Fincham next argues that fundamental fairness entitles him to know the identity of the informant who put Norris on his trail and introduced Norris to him. "Generally, the identity of a person furnishing the prosecution with information concerning criminal activities is privileged." Gray v. Commonwealth, 233 Va. 313, 328, 356 S.E.2d 157, 165, cert. denied, 484 U.S. 873 (1987). Whether nondisclosure is erroneous depends on whether the trial court abused its discretion in refusing to order disclosure. Lanier v. Commonwealth, 10 Va. App. 541, 552, 394 S.E.2d 495, 502 (1990). In determining whether the trial court abused its discretion, we balance "'the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant facts.'" Elisha Daniel v. Commonwealth, ___ Va. App. ___, ___, 427 S.E.2d 423, 425 (1993) (quoting Roviaro v. United States, 353 U.S. 53, 62 (1957)). This is known as the "Roviaro balancing test."See Lanier, 10 Va. App. at 552, 394 S.E.2d at 502.
The informant was present on three occasions: First, when he introduced Officer Norris to Fincham; next, on February 21, 1987 at Fincham's business, when Norris first approached Fincham to buy cocaine; and third, later that same day at the neighboring bar, when Norris, Polhemus, and the informant waited for Fincham to return with cocaine. The informant was not present during the drug transactions and did not participate in or aid in the actual sales. The informant merely introduced Officer Norris to Fincham and was present when Norris re-introduced himself on February 21. The identity of a mere introducer need not be revealed.United States v. Diaz, 655 F.2d 580, 588 (5th Cir. 1981),cert. denied, 455 U.S. 910 (1982).
Fincham argues that with knowledge of the informant's identity, he might have developed a defense of entrapment. Nothing in the record suggests entrapment. The record abundantly demonstrates Fincham's willingness to sell cocaine. His suggestion of entrapment is mere speculation.
IV. EVIDENCE OF ANOTHER DRUG CRIME
Fincham next contends that the trial court improperly received evidence of the February 21, 1987 drug transaction at the second trial and evidence of subsequent drug transactions at the first trial. The trial court correctly held that evidence of other crimes is inadmissible except to show a common scheme or "uniform plan from which motive, criminal intent, or knowledge may be inferred." Sutphin v. Commonwealth, 1 Va. App. 241, 246, 337 S.E.2d 897, 899 (1985).
During the first trial, the court properly allowed the Commonwealth to play tapes of conversations between Norris and Fincham that referred to prospective arrangements for selling cocaine. Such evidence is admissible when it is "relevant to an issue or element in the present case." Id. at 245, 337 S.E.2d at 899. The taped conversations corroborated Officer Norris' testimony that Fincham agreed to future drug sales and, in doing so, the tapes contradicted Fincham's claim that he was a hesitant and unwilling seller.
Prior to the second trial, the trial court properly excluded evidence of the February 21, 1987 transaction except to allow Norris to testify about previous contacts with Fincham to set up drug sales. During his testimony at the second trial, Norris mentioned that "covert activities" occurred on February 21. This clearly meant undercover operations and, as the trial judge remarked, did not describe a drug sale.
During the second trial, the Commonwealth's Attorney played a tape of the February 24, 1987 telephone conversation. This conversation referred back to the February 21, 1987 transaction. Norris stated that the drugs he received on that occasion weighed less than an ounce. The trial court had ruled at a bench conference that this reference could not be played to the jury. However, neither party reacted to its disclosure. Because Fincham failed to put the trial court on notice of a possible error, we will not address on appeal the introduction of this segment of the tape recording. Rule 5A:18.
At the second trial, Officer Polhemus testified that he and Norris received cocaine from Fincham on February 21, 1987. This comment violated the trial court's order. The trial court denied Fincham's motion for a mistrial. No cautionary instruction was sought. A trial court has broad discretion in determining whether to grant a mistrial. Manning v. Commonwealth, 2 Va. App. 352, 356, 344 S.E.2d 197, 199 (1986). The facts and circumstances involved in the February 21 transaction were part of a continuing course of dealings that led to the transactions involved in the second trial. Under those circumstances, we find no abuse of discretion in the trial court's denial of a mistrial.
V. EVIDENCE OF DANGEROUSNESS
Fincham next contends that the trial court erred in refusing to exclude as prejudicial testimony suggesting his involvement in two unsolved homicides and his purchase of a machine gun. Fincham called as a witness Eugene Gunter, an attorney representing Robert Larry Stewart, who was under prosecution. Fincham's counsel examined Mr. Gunter concerning an offer of leniency proposed by the Commonwealth's Attorney in exchange for Stewart's cooperation in the prosecution of Fincham. On direct examination, Mr. Gunter testified as follows:
A. Basically, that if Mr. Stewart, whom he felt knew something about Mr. Fincham, that if he would cooperate that there would not be anything done to Mr. Stewart.
Q. The extent of the cooperation, was it going to be involving testimony?
A. I don't know.
Q. Was it going to be providing information to Mr. Williamson?
A. Yes. [I]t would have definitely [sic] been providing information.
Q. Was it with respect to crimes alleged other than narcotics?
A. Yes. Other things were mentioned.
Q. Did those other things involve murder?
A. Yes.
On cross-examination, the Commonwealth's Attorney pursued this line of questioning. He asked:
Q. At that time I told you, did I not, that the Commonwealth believed . . . I think I said "we strongly believe that Mr. Fincham here was responsible for the murder of Robert Garrett and involved in the murder of Officer Smedley?"
A. I don't know that those were the precise words, but yes, sir. That is what you told me.
Q. And, I also told you at that time that the Commonwealth believed that your client, Robert Larry Stewart, may have received some information concerning those murders from the defendant, Fincham?
Fincham's counsel did not object to this line of questioning. We will not consider this issue for the first time on appeal. Rule 5A:18.
The trial court sustained defense counsel's objection to the Commonwealth's Attorney's question to Officer Norris concerning Fincham's desire to trade cocaine for a machine gun. The trial court gave a proper curative instruction. We find no abuse of discretion in its denial of a mistrial on this ground.
VI. OPINION TESTIMONY
Fincham next contends that the trial court erred in receiving Officer Norris' opinion of whether the cocaine found on Fincham's person was for distribution or for personal use. He argues that this was an ultimate issue on trial. However, Fincham failed to object to this testimony at trial. Therefore, we will not entertain this issue on appeal. Rule 5A:18.
VII. ACCOMMODATION INSTRUCTION
Fincham next contends that the trial court improperly instructed the jury on accommodation when the jury requested a clarification of the phrase "only as an accommodation to another." He argues that the court incorrectly defined the term "another" as referring only "to the recipient of the thing that may have been distributed," thus precluding the jury from considering that an accommodation can be to the supplier of the drug. Code § 18.2-248(D) reads, in pertinent part:
If such person proves that he gave, distributed or possessed with intent to give or distribute a controlled substance . . . as an accommodation to another . . . and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance. . . .
The trial court incorrectly narrowed the meaning of the phrase "accommodation to another." Clearly, the statute provides a reduced penalty for one who distributes drugs only as an accommodation. The legislature did not limit the term "another." It did not provide "accommodation to a recipient." Therefore, Code § 18.2-248(D) allows for accommodation to either a provider or receiver of the controlled substance.
However, Fincham was not entitled to an instruction on accommodation. The sales of cocaine that were the subjects of the two trials were both commercial transactions, based upon a monetary consideration. They did not fall under the accommodation provision of Code § 18.2-248(D). See King v. Commonwealth, 219 Va. 171, 174, 247 S.E.2d 368, 370 (1978). Therefore, the trial court's erroneous definition of accommodation was harmless error.
VIII. CUMULATIVE ERROR
We have found no reversible error in Fincham's issues on appeal.
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.